IN past articles we explored various types of remedies that a person may wish to pursue.
This week we propose to examine limitation periods or what is commonly referred to as “a matter being statute barred.”
What this simply means is that where a person suffers some loss and that person is entitled to pursue a remedy in respect of that loss, there are time limits within which to commence the action in court, failing which a person may be prevented by law from pursuing a remedy.
The phrase “statute barred” is quite a literal phrase. In this jurisdiction we have the Limitation of Certain Actions Act, which lays down certain time periods within which an action can be commenced in court. This act is what is referred to as a statute, so that where a person fails to commence their action in time, their cause of action is said to be barred by statute, hence the term “statute barred.”
The Limitation of Certain Actions Act provides that where you have a cause of action based on a contract, including what is referred to as a quasi-contract or tort, you have four years within which to commence your action.
A cause of action in contract is straightforward, in that if you enter into a contract with another person and that person does not perform the contract, you have four years from the date of the failure to perform the contract within which to commence your action in order to obtain a remedy.
A tort is where a duty exists between two persons. For example, as between two drivers, they each owe a duty to the other to drive carefully. In the event one driver fails to drive carefully, and drives in a negligent manner causing an accident, he would have breached his duty to drive carefully and would have committed the tort of negligence. In such a case, the innocent driver will have four years from the date of the accident within which to commence an action to recover damages in respect of the damage done to his vehicle.
Where a contract contains an arbitration clause and the parties have proceeded to arbitration and obtained an award from the arbitrator, the successful party has four years within which to enforce the award. In the event an act of Parliament provides for the payment of a sum, the person entitled to the payment also has four years within which to recover such sum. In the event a person obtains a judgment from the court, that person has 12 years in which to enforce the judgment.
Where a person has suffered an injury at the hands of another, although they have the same four years within which to commence an action, certain special rules apply.
Firstly, the court has the power in this case to extend the limitation period.
Accordingly, even though the four-year period may have passed, once there is a good reason for failing to file within the four-year period, the court can extend the period and allow a person to file after the four years.
In such a case the person will have to convince the court that they have a good explanation as to why they were not able to file their action within the four-year period.
Secondly, the date from which the four-year period is counted may vary depending on the circumstances of the case. So that, although a person may have suffered an injury, the seriousness of the injury may not have been known until a later date. In such a case, the four-year period will start to run from when the person knew that the injury was a serious one.
In cases of fraud, deliberate concealment or mistake, time will not begin to run until the person could have discovered the fraud, concealment or mistake with reasonable diligence.
Further, in the case of a person under what is regarded as a disability for the purpose of limitation, for example a minor, the four-year period will only begin to run when the disability is over.
In the case of a trade dispute, the union has six months within which to report the existence of the dispute. However, the minister has the power to extend that time once there is a good reason for so doing.
In the case of judicial review, you have three months from the date of the decision in order to challenge the decision.
It must be noted however that limitation is a defence and does not extinguish the cause of action. What that means is the cause of action still exists and a person is free to file the action after the period of limitation has expired. It will be for the defendant to claim that the cause of action is statute barred. If the defendant does not raise that defence, then an action filed after the limitation period has passed will be able to proceed.
Further, it is open for persons to agree that they will not rely on the limitation defence. For example, where parties are negotiating, and the end of the four-year period is approaching, the parties may agree not to rely on the limitation defence in order to facilitate the negotiations.
If negotiations eventually break down, once there is that clear agreement, the innocent person will be able to file their claim even though the four-year period has passed, and due to the agreement arrived at, the defendant will not be able to maintain that the matter is statute barred.
Although in most cases determining the limitation period is straightforward, there are many factors that may determine when time begins to run or whether the Court has the power to extend the period of limitation. Accordingly, in the event you have a remedy that you wish to pursue, it is advisable that you do so in a timely manner, but in any event, you should seek legal advice in order to ensure that you are not left without a remedy simply because you waited too long in order to pursue your remedy.
Ravi Nanga is an attorney-at-law
Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations
What Does Statute Barred Mean
By Ravi Nanga
IN past articles we explored various types of remedies that a person may wish to pursue.
This week we propose to examine limitation periods or what is commonly referred to as “a matter being statute barred.”
What this simply means is that where a person suffers some loss and that person is entitled to pursue a remedy in respect of that loss, there are time limits within which to commence the action in court, failing which a person may be prevented by law from pursuing a remedy.
The phrase “statute barred” is quite a literal phrase. In this jurisdiction we have the Limitation of Certain Actions Act, which lays down certain time periods within which an action can be commenced in court. This act is what is referred to as a statute, so that where a person fails to commence their action in time, their cause of action is said to be barred by statute, hence the term “statute barred.”
The Limitation of Certain Actions Act provides that where you have a cause of action based on a contract, including what is referred to as a quasi-contract or tort, you have four years within which to commence your action.
A cause of action in contract is straightforward, in that if you enter into a contract with another person and that person does not perform the contract, you have four years from the date of the failure to perform the contract within which to commence your action in order to obtain a remedy.
A tort is where a duty exists between two persons. For example, as between two drivers, they each owe a duty to the other to drive carefully. In the event one driver fails to drive carefully, and drives in a negligent manner causing an accident, he would have breached his duty to drive carefully and would have committed the tort of negligence. In such a case, the innocent driver will have four years from the date of the accident within which to commence an action to recover damages in respect of the damage done to his vehicle.
Where a contract contains an arbitration clause and the parties have proceeded to arbitration and obtained an award from the arbitrator, the successful party has four years within which to enforce the award. In the event an act of Parliament provides for the payment of a sum, the person entitled to the payment also has four years within which to recover such sum. In the event a person obtains a judgment from the court, that person has 12 years in which to enforce the judgment.
Where a person has suffered an injury at the hands of another, although they have the same four years within which to commence an action, certain special rules apply.
Firstly, the court has the power in this case to extend the limitation period.
Accordingly, even though the four-year period may have passed, once there is a good reason for failing to file within the four-year period, the court can extend the period and allow a person to file after the four years.
In such a case the person will have to convince the court that they have a good explanation as to why they were not able to file their action within the four-year period.
Secondly, the date from which the four-year period is counted may vary depending on the circumstances of the case. So that, although a person may have suffered an injury, the seriousness of the injury may not have been known until a later date. In such a case, the four-year period will start to run from when the person knew that the injury was a serious one.
In cases of fraud, deliberate concealment or mistake, time will not begin to run until the person could have discovered the fraud, concealment or mistake with reasonable diligence.
Further, in the case of a person under what is regarded as a disability for the purpose of limitation, for example a minor, the four-year period will only begin to run when the disability is over.
In the case of a trade dispute, the union has six months within which to report the existence of the dispute. However, the minister has the power to extend that time once there is a good reason for so doing.
In the case of judicial review, you have three months from the date of the decision in order to challenge the decision.
It must be noted however that limitation is a defence and does not extinguish the cause of action. What that means is the cause of action still exists and a person is free to file the action after the period of limitation has expired. It will be for the defendant to claim that the cause of action is statute barred. If the defendant does not raise that defence, then an action filed after the limitation period has passed will be able to proceed.
Further, it is open for persons to agree that they will not rely on the limitation defence. For example, where parties are negotiating, and the end of the four-year period is approaching, the parties may agree not to rely on the limitation defence in order to facilitate the negotiations.
If negotiations eventually break down, once there is that clear agreement, the innocent person will be able to file their claim even though the four-year period has passed, and due to the agreement arrived at, the defendant will not be able to maintain that the matter is statute barred.
Although in most cases determining the limitation period is straightforward, there are many factors that may determine when time begins to run or whether the Court has the power to extend the period of limitation. Accordingly, in the event you have a remedy that you wish to pursue, it is advisable that you do so in a timely manner, but in any event, you should seek legal advice in order to ensure that you are not left without a remedy simply because you waited too long in order to pursue your remedy.
Ravi Nanga is an attorney-at-law
Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations